Earlier this month, the 11th Circuit considered the constitutionality of an ordinance enacted in Sandy Springs, Georgia, which criminalizes the distribution of sexual devices. Although not a First Amendment case, we’re including a post on the case because the decision relates to a First Amendment-protected land use—adult businesses—and introduces an alternative constitutional theory for challenging regulation of adult businesses.

Appellants in the case claimed that the Sandy Springs ordinance violated their substantive due process right to privacy. Appellants included an adult bookstore that sells sexually explicit materials and items, including sexual devices, and a woman suffering from multiple sclerosis who uses sexual devices with her husband to facilitate intimacy. Although expressing sympathy with appellants’ claims, the court held that it could not break from a 2004 11th Circuit decision that held that privacy-based rights, including the right to buy, sell and use sexual devices, were not fundamental rights under the Constitution, and affirmed the district court’s dismissal of the case.